Citation Nr: 18107266 Decision Date: 06/01/18 Archive Date: 06/01/18 DOCKET NO. 09-43 168 DATE: June 1, 2018 REMANDED Entitlement to service connection for chronic lymphocytic leukemia (CLL), as due to exposure to herbicides, is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to September 1970. In a June 2013 decision, the Board denied the claim of entitlement to service connection for CLL on a presumptive basis due to chronic disease and as due to herbicide exposure. The Veteran appealed the Board’s decision regarding entitlement to service connection for CLL, as due to herbicide exposure, to the United States Court of Appeals for Veterans Claims (Court). The part of the Board’s June 2013 decision that denied entitlement to service connection for CLL, presumed as a chronic disease, was deemed abandoned and not otherwise addressed by the Court. In May 2014, the Court issued a Memorandum Decision, vacating and remanding the issue of entitlement to service connection for CLL, as due to exposure to herbicides, to the Board for additional development. The Court found that the Board erred in finding that Agent Orange (AO) was not used in Korea during the Veteran’s dates of service and failed to consider favorable material evidence that supports the Veteran’s assertions that he was exposed to AO while serving at a radar site near the Korean Demilitarized Zone (DMZ). In April 2014, the Board denied entitlement to service connection for CLL on a direct basis and remanded the issue of TDIU. In January 2015, and most recently in February 2017, the Board remanded the claims for further development. Additional development is required for compliance with the Board’s remand directives to decide the claims on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Dement v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to service connection for chronic lymphocytic leukemia (CLL), as due to exposure to herbicides is remanded. The Veteran contends that he was exposed to herbicides, specifically Agent Orange, during his service in Korea. The Veteran’s alleged exposure includes moving barrels of herbicides at ASCOM Depot in September or October 1969; observing Korean service members applying a chemical for weed control in September 1969 and the summer of 1970 at an Air Defense Artillery (ADA) Headquarters; moving barrels of herbicides and working perimeter guard duty at a compound and a communication site where herbicides were used while stationed with the 6th Battalion, 44th ADA Headquarters; being stationed at Hongseong, which had little to no vegetation; and escorting a visiting chaplain to an area approximately 10 miles away from Camp Casey in January 1970. See March 2004 and April 2009 Veteran statements; June 2009 notice of disagreement; October 2009 substantive appeal (VA Form 9); and November 2014 and January 2015 Veteran statements. When presumptive exposure to an herbicide agent based on service in Korea may not be established, the development procedures set forth in the VBA Manual must be followed, to the extent possible. See VBA Manual, M21 IV.ii.1.H.4.c. This development includes submitting a request for verification of herbicide exposure to the U.S. Joint Services Records Research Center (JSRRC), unless it is determined that there is insufficient information to submit such a request, in which case a formal finding by the JSRRC coordinator must be made to that effect. See id. On remand, these development procedures must be accomplished. Following the February 2017 Board remand, the Regional Office (RO) sent an inquiry to Compensation Service in October 2017. An October 2017 email correspondence reflects that Compensation Service could provide no evidence to support the claim. Further, it was stated that unless the claim is inherently incredible or clearly lacks merit [see 38 C.F.R. § 3.159(d)(2)], it should be referred to the U.S. Army and Joint Services Records Research Center (JSRRC) for any information that this organization can provide to corroborate the Veteran’s claimed exposure. Instructions for the RO were also provided; however, it does not appear that the RO has performed the steps detailed and provided the JSRRC the necessary information to research the Veteran’s alleged herbicide exposure. Therefore, the Board finds that a remand is required to ensure that all necessary development as documented in VBA Manual, M21 IV.ii.1.H.4.c. is followed to ensure that the alleged herbicide exposure has been properly researched, to the extent possible. Furthermore, in an April 2009 statement and July 2011 appellant’s brief, the Veteran has alleged the use of herbicide agents or chemicals to include carbon tetrachloride, while the Veteran was stationed in Key West, Florida. Thus, this exposure should be researched as well. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. A determination with respect to the service connection claim for CLL may have an impact upon consideration of the issue of entitlement to TDIU on appeal; the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. As such, Board consideration of the merits of the Veteran’s TDIU claim is deferred pending adjudication of the Veteran’s service connection claim for CLL. The matters are REMANDED for the following action: 1. Undertake the development procedures set forth in the VBA Manual, M21 IV.ii.1.H.4.c, regarding verifying exposure to an herbicide agent in Korea. • The Veteran’s alleged exposure includes moving barrels of herbicides at ASCOM Depot in September or October 1969; observing Korean service members applying a chemical for weed control in September 1969 and the summer of 1970 at an Air Defense Artillery (ADA) Headquarters; moving barrels of herbicides and working perimeter guard duty at a compound and a communication site where herbicides were used while stationed with the 6th Battalion, 44th ADA Headquarters; being stationed at Hongseong, which had little to no vegetation; and escorting a visiting chaplain to an area approximately 10 miles away from Camp Casey in January 1970. See (i) VBMS entry with document type, “Correspondence,” receipt date 03/30/2004; (ii) VBMS entry with document type, “VA 21-4138 Statement In Support of Claim,” receipt date 04/30/2009; (iii) VBMS entry with document type, “Notice of Disagreement (Non-Standard Form),” receipt date 06/15/2009; (iv) VBMS entry with document type, “VA 9 Appeal to Board of Appeals,” receipt date 11/04/2009; (v) VBMS entry with document type, “Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief),” receipt date 12/02/2014; and (vi) VBMS entry with document type, “Correspondence,” receipt date 02/17/2015. • Correspondence and instruction from Compensation Service should also be referenced when attempting to verify the Veteran’s alleged herbicide exposure while stationed in Korea. See VBMS entry with document type, “Email Correspondence,” receipt date 10/27/2017. Document negative responses received, to include a formal finding on a lack of information required to verify the alleged herbicide exposure and outlining all efforts to corroborate the herbicide exposure as applicable. 2. Undertake the development procedures set forth in the VBA Manual, M21 IV.ii.1.H.7.a. regarding verifying exposure to an herbicide agent in Key West, Florida. • The Veteran asserted that while on active duty he was exposed to Carbon Tetrachloride, which was used for cleaning purposes and as an herbicide agent. See VBMS entry with document type, “VA 646 Statement of Accredited Representative in Appealed Case,” receipt date 07/13/2011; see also VBMS entry with document type, “VA 21-4138 Statement In Support of Claim,” receipt date 04/30/2009. Document negative responses received, to include a formal finding on a lack of information required to verify the alleged herbicide exposure and outlining all efforts to corroborate the herbicide exposure as applicable. 3. Thereafter, based on the entirety of the evidence, readjudicate the claim of entitlement to service connection for CLL, as due to exposure to herbicides. 4. Thereafter, based on the entirety of the evidence, readjudicate the claim of entitlement to TDIU. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel